Tuesday, November 15, 2016

The Lesser Known Writ of Error Coram Nobis Is The Proper Vehicle For Ineffective Assistance Of Counsel Claims If No Longer Detained



Surur Fatumabahirtu v. United States (decided November 3, 2016). 

Players: Associate Judges Glickman and Beckwith, Senior Judge Ferren.  Opinion by Judge Beckwith.  Jeffrey Light for Ms. Surur (the case caption incorrectly switches Ms. Surur’s given and family names).  Trial Judge: Wendell P. Gardner.

Facts: Ms. Surur was convicted of attempted possession of drug paraphernalia with intent to sell, which was affirmed on appeal.  See Fatumabahirtu v. United States, 26 A.3d 322 (D.C. 2011). Ms. Surur was working as a clerk at a gas station where she was alleged to have sold an ink pen along with a copper scouring pad to an undercover officer. The officer testified that he only asked for a pen, and that when the clerk sold him the pen along with the scouring pad, she did so because the two items are often used together to make crack pipes.

Ms. Surur filed a petition for writ of error coram nobis, alleging ineffective assistance of trial counsel. Ms. Surur particularly took issue with the fact that counsel did not pursue a misidentification defense.  Ms. Surur did not precisely fit the description of the clerk that the officer provided, she had testified that she had never seen the officer before, and had said that another clerk matched the officer’s description more closely.

At the hearing, trial counsel testified that he did not pursue a misidentification defense not for strategic reasons, but because he “just went with a different defense.”

Issues: Was trial counsel ineffective for not investigating a misidentification defense? And is a writ of error coram nobis the appropriate vehicle for relief?

Holding: Yes and yes. Counsel’s performance was deficient under the Strickland ineffectiveness test. The Court acknowledged that there are “strategic and tactical” reasons to pursue certain defenses to which the Court defers, but here, “the issue in evaluating counsel’s performance is not the reasonableness of the strategy counsel ultimately pursued,” “but the reasonableness of the investigation said to support that strategy.” (quoting Cosio v. United States, 927 A.2d 1106, 1126 (D.C. 2007) (en banc)). The Court reasoned that “deference to counsel’s strategic choices does not come into play” because counsel “offered no strategic explanation for failing to pursue these avenues of investigation.” A misidentification defense would not have been inconsistent with the defense counsel chose, and counsel was on notice of a misidentification defense when Ms. Surur testified that she had never sold the ink pen and scouring pad yet counsel still did not ask  “basic questions,” pursue “extrinsic evidence,” or go over Ms. Surur’s testimony with her before trial—all steps that likely would have uncovered the misidentification defense. Thus, the Court held that counsel rendered constitutionally deficient performance by failing to pursue a misidentification defense. 

The Court held that Ms. Surur was prejudiced by her counsel’s deficient performance because there is a reasonable probability that the outcome of trial would have been different given (a) Ms. Surur’s testimony that she does not own the clothing that the undercover officer said the clerk was wearing; (b) the fact that Ms. Surur did not closely match the height or weight that the officer gave of the alleged clerk who sold him the paraphernalia; and (c) the other clerk who worked at the store was Ethiopian, like Ms. Surur, and similarly complexioned.

The Court also ruled that a writ of error coram nobis is the proper vehicle to pursue and ineffective assistance of counsel claim when a person is no longer in custody. To obtain coram nobis relief, “a petitioner is required to demonstrate that: (1) the trial court [was] unaware of the facts giving rise to the petition; (2) the omitted information is such that it would have prevented the sentence or judgment; (3) petitioner is able to justify the failure to provide the information; (4) the error is extrinsic to the record; and (5) the error is of the most fundamental character.” The Court held that all five factors were satisfied here. DH

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